Romance v. Reality

by Benjamin Cheah

On the 19th of November, lawyer M Ravi released this press release announcing his attempt to mount a constitutional challenge against Section 377A of the Penal Code. This law criminalises ‘gross indecency’ between men, effectively outlawing male homosexuality in Singapore. In response, Alex Au published this post detailing what he thought of Ravi’s proposal. On Saturday, Ravi held a forum to explain his position on 377A, and invited several speakers to talk about the effects of sexual discrimination in their lives. Having read Au’s article and attended Ravi’s forum, I find myself able to compare both men’s approach to the issue.

Both men agree that Section 377A has to go. Both men make the case that this law leads to insitutionalised discrimination and societal prejudice, even if not actively enforced. This case is two-fold. Firstly, this law allows the State, or prejudiced agents of the State, to lay down and enforce policies that discriminate against citizens on the basis of sexual orientation. Secondly, by keeping the law, the Government is creating and continues to create the impression that there is something deplorable about homosexuality; people who base their morality on existing laws are then led to believe that there must be something wrong with homosexuality. Both men can make this argument far more eloquently than I can; going into this is not the scope of this article.

Where both men diverge is their approach. Au gives the impression that he is approaching the issue from a strategic perspective. He is concerned with what works and what doesn’t work, and will concentrate his energies on what he believes will work. I don’t think he lets his emotions get in the way of his analysis much, if at all, when he sets his mind to it. Ravi, however, seems to be a man of conviction and emotion. When he finds a cause that fires him up, he would pick the most dramatic and high-profile way to fight it – everything else seems secondary. It’s like he’s picking ways and means that make him feel good, and make others feel like something is worth fighting for.

Both men have different ideas about a constitutional challenge. In Au’s post, he covers the strategy behind a constitutional challenge. He writes about the standards of proof required by the courts, how the judges’ attitudes influence such a challenge, and the strategy applied by activists in India and the United States to strike down discriminatory laws through constitutional challenges.

On the other hand, Ravi’s forum concentrated on the lives of people affected by sexual discrimination – on the human element, so to speak. The first speaker, Vincent Wijeysingha, spoke about the history of Section 377A, how it affects people, and why it must be abolished. Amy Tachiana, Sabrina, Hedrick Kwan and Mathia Lee spoke about the discrimination they faced from the government and society. Ravi’s concluding speech was about why he is mounting the challenge, questioning why Singapore’s male gay community does not appear to be standing up for men charged under Section 377A, highlighting his perception that women and transgendered people are stepping forward to help these men, and why it is absurd to discriminate against people on the grounds of sexual orientation. Ravi’s client, Tan Eng Hong, made a speech of his own, largely about how he felt about being charged under Section 377A, how he felt after the charges were reduced, and how he intends to move on.

Au focuses on the hows of a constitutional challenge. Ravi emphasises the whys behind his constitutional challenge. In an ideal world, there shouldn’t be any conflict between the hows and the whys. But in this case, there is.

As Au said, the courts demand a high standard of evidence and verification. The judiciary wants to see links between the Constitution, Section 377A, the policies that this section enable, and the discrimination faced by people on the ground. Ravi needs to be able to draw these links and prove why Section 377A is unconstitutional before the judges will decide whether to strike it down. In a constitutional challenge, the courts are more interested in the hows than the whys – you may have plenty of reasons to strike down a law, but if you cannot prove that it is unconstitutional, the challenge will fail.

In the forum, Ravi claimed that he has a strong legal case, backed by his team of researchers. This may even be true. The impression he gave me, however, painted a different story.

In his press release, Ravi said that the “forum will try to disentangle the issues surrounding this contentious question [presumably about section 377A and a constitutional challenge mounted against it], and examine what can and need to be done if the ongoing discrimination against gay and bisexual men is not to continue so late into the modern age.” I did not feel that had happened.

It seemed that most of the forum was simply about the discrimination people face under the law – indeed, most of the speakers gave testimonials about their lives and the prejudice they faced, and little more. Just two out of the seven speakers would be directly affected by Section 377A – that is, the discrimination they faced or may face can be linked directly to that law. The other speakers, despite having faced discrimination of one kind of another, have not drawn any direct links between what they have faced to Section 377A. By legal standards, it is difficult to accept the latter as evidence that Section 377A must go.

Apart from a general agreement that Section 377A needed to be abolished, there was very little spoken about the hows beyond possibly forming a group to decide what to do next. Of the technicalities behind a constitutional challenge, just about nothing of note was said – nothing about strategy, points to consider, the legal environment, the attitudes of the judges who may be called upon to consider the case. Of his own case, Ravi said nearly nothing beyond the whys and a few lines about his research team. As Au implies in his post, a constitutional challenge needs more than this to succeed.

What I have seen does not inspire confidence. I don’t sense that Ravi is in fact concerned about the strategy behind a constitutional challenge. Instead of talking strategy, his forum is almost entirely dedicated to talking about people and their issues. This is not unimportant, but in strategy, it is only relevant as a component of arguments and only effective if backed by proof. Ravi’s case, what he does say about it, seems focused on effects on people, and relies on the courts to draw all the links he is required to make in a constitutional challenge. I don’t think the courts are going to do that; he’ll have to figure out how to do it when the time comes.

I believe Ravi’s heart is in the right place. But without demonstrating a grasp of strategy, I highly doubt his chances of winning the challenge. So, good luck to you, Ravi – you’ll need as much of it as you can get.

TOC would like to thank Benjamin for allowing us to reproduce this article – which was first published on his blog – here.

The following is a video recording of M Ravi’s speech at the 377A forum.